MR PAUL FULLER v MASTERCARE SERVICE & DISTRIBUTION [2001] UKEAT 0707_00_2409

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 0707_00_2409

Case No Appeal No. EAT/0707/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR PAUL FULLERAPPELLANT

MASTERCARE SERVICE & DISTRIBUTIONRESPONDENT

Before

Mr Recorder Langstaff

Date 24 September 2001

[1]APPEARANCES For the Appellant MS S PARENT (of Counsel) Acre Lane Chambers 30a Acre lane Brixton London SW2 5SG For the Respondent MR A STAFFORD QC (of Counsel) Messrs Doyle Clayton Solicitors 69-70 Marsh Lane London EC3 7HS MR RECORDER LANGSTAFF QC This is an appeal from a decision of the Employment Tribunal sitting at Stratford. In Extended Reasons promulgated on 2 May 2000 the Tribunal dismissed the Appellant's claims that he had been unfairly dismissed and discriminated against upon the grounds of his sex. The appeal is solely in relation to the latter claim.

[2]In essence the Appellant's case was that a requirement as to hair length was imposed upon him which was not, or would not have been, imposed upon a woman and that a requirement that he should remove his 'ponytail' was discriminatory against him.

[3]He, so the Tribunal found, was employed by the Respondent in order to repair equipment which customers returned to a Dixons store. He thus had some face to face contact with customers. Upon engagement in 1993 he was subject to a dress code which he received in writing and accepted which said this:

"….. in addition because of the frequency of contact with customers staff will be well groomed and presentable in their appearance. Long hair etc will not be acceptable."

That was amplified by a poster which said, as to hair required for male staff, that it:

"Must be neatly groomed. Conservatively cut (no long hair or ponytails)."

While for female staff it required only that it:

"Must be neatly groomed."

There was thus the additional requirement imposed upon men that their hair had to be cut 'conservatively'. They were not permitted long hair nor were they permitted ponytails.

[4]The Appellant, who on first employment complied with the code, began to grow his hair long to wear it in a ponytail. On a number of occasions he was spoken to and asked, or required, to cut his hair. Eventually this led to his dismissal.

[5]The Tribunal, when it dealt with the questions to which the discrimination claim gave rise, recorded Section 1 of the Sex Discrimination Act 1975 and noted that such discrimination would by Section 6(2)(b) of the Act provide a claim if the employee was dismissed or subjected to any other detriment. It was also invited to consider the Human Rights Act 1998 which was not at the time in force in the United Kingdom and in particular Articles 8, 10 and 14 of the Convention. In the event no Human Rights point has been argued before us in support of the appeal.

[6]The Tribunal approached its task by setting itself a number of questions. At paragraph 7(a) of its decision it put these in three stages. It said:

"First, it must determine what the contractual position was at the outset of the Applicant's employment. Secondly, it must decide whether the material terms of that contract were varied or whether the Respondent is for any reason estopped from relying on those terms. Thirdly, it must consider whether, taken as a whole, the dress code was discriminatory in that the treatment accorded to male employees was less favourable than the treatment accorded to female employees."

The Tribunal went on to find in summary that the dress code was a term of the Appellants' contract, that it had been imposed for a legitimate commercial objective, and then having accepted that the aim was permissible said this, at paragraph 7(d), which requires full citation:

"The Tribunal notes that the prohibition of long hair or ponytails applied only to male staff; but taken overall the dress code set out on page 33 and in the poster does not, the Tribunal finds, breach the principle derived from Schmidt v Austicks Bookshop Ltd and approved in Smith v Safeway Plc that, taken as a whole, and not garment by garment or item by item, a dress code must not treat one gender less favourably. In the present case the requirement is plainly one of conventionality of appearance. In considering this, and the appearance of men and women at work, different conventions do apply to clothing, make-up, hair length and jewellery. In reaching this conclusion the Tribunal has taken into account the fact that a requirement as to the length of the Applicant's hair does affect his private life as well as his working life."

[7]The Tribunal went on to acknowledge that it was not for them to determine the commercial desirability of the dress code but to ask whether it operated unfavourably as against the Applicant because of his sex. They added that they found that the Respondent did attach considerable importance to the uniform application of the dress code in relation to the conduct of its business and that it was entitled to do so.

[8]The Tribunal concluded that neither in the imposition of the dress code, nor its enforcement, nor in the dismissal of the Applicant, did the Respondent discriminate against him on the grounds of his sex. In considering the arguments which have been addressed to them (though not pursued before us) in respect of the Human Rights aspect, the Tribunal added that if the European Convention on Human Rights had at that time been incorporated as it now is, the Tribunal would not have concluded that the insistence on the dress code was a breach of

Article 8 of the Convention

, finding that, applying the case of Kara v UK 27 EHRR CD 272 , the interference arising from the constraints upon the Applicant's appearance was in accordance with the law, was in pursuit of a legitimate aim, and was necessary in that it was proportionate to that aim. It did not accept that there had been a breach of Article 10, and concluded that the imposition of the dress code did not unnecessarily restrict the Applicant's freedom of expression.

[9]What the Employment Tribunal did not say, in terms, was that it accepted that the wearing of a ponytail was unconventional for a man. In her persuasive and impressive submissions, Ms Parent has acknowledged that, if the Tribunal had said that long hair was unconventional, her appeal would inevitably have to fail. This reflects the fact that it has not been argued before us that it would be perverse in this day and age for a Tribunal sitting in London to conclude that ponytails were unconventional. The submission therefore is to the effect that that must be a matter for the Tribunal itself to determine and assess and not one which we, in this Tribunal, whatever our views might be, could interfere with. The Submissions

[10]Ms Parent submits that the Tribunal did not approach matters in the proper way. Instead of moving from the second question it posed itself, to the third, it should have inserted a further question. It should have asked two questions in respect of the dress code. First, it should have looked at the individual requirements of the code and asked whether those individual requirements fitted within the common standard which the code sought to impose. Secondly, it should have asked, did the code have the same standard imposed upon men and women individually? It was that first question which had not been addressed.

[11]In support of that submission Ms Parent drew our attention to the case of McConomy v Croft Inns Ltd

[1992] IRLR 561

. That was a case in which a man was asked to leave a Northern Irish bar when he was seen to be wearing two stud earrings in the lobe of one ear. No objection would have been taken to such earrings had he been female. In the High Court of Northern Ireland on appeal from a Circuit Judge in the County Court, who was unimpressed by the claim, Lord Justice Murray said at paragraph 6:

"…. while I can see that in comparing like with like one would have to take account of certain basic rules of human conduct – such as the ordinary rules of decency accepted in this community – which might permit or require different dress regulations as between men and women, I find it difficult to see how in today's conditions it is possible to say that the circumstances are different as between men and women as regards the wearing of personal jewellery or other items of personal adornment. ….."

It appears that so far as Lord Justice Murray was looking at any test that might be appropriate for an appellate court to apply, he treated the appeal as one in which there had been perversity by the first instance Tribunal.

[12]It should be emphasised that McConomy was reported some four years prior to the Court of Appeal's decision in Smith v Safeway Plc

[1996] IRLR 456

which was the next case to which Ms Parent drew out attention. At paragraph 9 in the Judgment of

Lord Justice Phillips it is said that:

"Rules concerning appearance will not be discriminatory because their content is different for men and women if they enforce a common principle of smartness or conventionality, and taken as a whole and not garment by garment or item by item neither gender is treated less favourably in enforcing that principle."

Again, at paragraph 19:

"…. the industrial tribunal had to consider interrelated questions of whether the restriction on the length of hair being worn by men could properly be justified on the ground that it represented a requirement of conventional appearance, and whether the restriction imposed by that item of the appearance code, when considered in the context of the code as a whole, resulted in men being treated less favourably than women."

Ms Parent says that that step, considering the restriction imposed by the hair length requirement in the context of the code as a whole, was a step not taken by the Employment Tribunal here. Ms Parent accepts, as we understand her argument, that if it had been, and if the Employment Tribunal had concluded adversely to the Appellants' case, there would be no basis for the appeal.

[13]In reply, Mr Stafford QC, for the Respondent, accepted that the Employment Tribunal had not in terms stated that they accepted or found that the wearing of a ponytail was within the unconventional as opposed to the conventional. Mr Stafford pointed out however, that as to the approach of the Tribunal it had had the advantage of lengthy and detailed submissions from both parties. Those submissions, which ran in total to some thirty five pages, focused upon hair length as an individual criteria within the totality of the dress code. Mr Stafford submitted that the first stage of the Tribunal's reasoning was demonstrated by paragraph 7(b) in which, having asked whether there was a proper reason for a code, had decided that there was. The second stage, he said, in logic, was to ask whether this code fitted within the scope permitted by their answer to the first. Mr Stafford said that that is something which the Tribunal concluded favourably to the Respondent, in paragraph (d), which we have already quoted in full above. As to the individual component of that dress code, which the restriction on the wearing of ponytails constituted, he asked whether it was something that 'stuck out like a sore thumb'. If it had done then the Tribunal could not have concluded that the dress code taken as a whole treated the genders equally favourably. Mr Stafford submitted that in paragraph 7(d) the Tribunal were in effect drawing a conclusion as to the conventionality or otherwise of ponytails.

[14]Paragraph 7(d) begins with the Tribunal noting that the prohibition of long hair or ponytails applied only to male staff. Pausing there, that would seem to be a recognition that there was differential treatment as between men and women. It was also focusing upon the "long hair" or "ponytails" prohibition as an individual aspect of the code. Mr Stafford pointed out that the words continue "but taken overall the dress code does not breach the principle approved in Smith v Safeway that, taken as a whole, a dress code must not treat one gender less favourably". In other words he was submitting that in this case the Tribunal had declined to find that the "ponytails" prohibition stuck out like the sore thumb in his colloquial test. Mr Stafford noted that the Tribunal had recognised that different conventions applied to individual aspects that might make up a dress code. Amongst those was hair length. Indeed, in the last sentence of paragraph 7(d), reference is made to the length of the Applicant's hair and recognition that a requirement as to the length of that hair would affect the private life of the Appellant.

[15]Mr Stafford asked us to read that in the light of paragraph 7(j) in which the Tribunal when considering the Human Rights point had held that the interference with the private life of the Appellant was not only in pursuit of a legitimate aim but was proportionate to that aim. The word 'proportionate' is there used in relation to the specific interference which the hair length prohibition here posed. Conclusions

[16]The simple answer perhaps to this appeal is that the central issue between the parties is whether or not the Tribunal drew any conclusion as to whether the length of hair or the wearing of a ponytail was within the bounds of what was unconventional. We accept the submissions made by Mr Stafford QC that, although the Tribunal does not in terms say that this is the case, it is implicit in its decision. Paragraph 7(d) considers and concerns the relationship between that individual requirement and the overall impact of the dress code. It would be difficult to conclude that a dress code treated genders equally favourably if in respect of one sex there was an individual component of the code which was out of kilter with the aim sought to be achieved by the code, that is, one of conventionality of dress. To hold that the code as a whole sought to require conventionality of appearance would, it seems to us, be a finding which the Tribunal could not have made if it had thought that a major component part of the code was one which was not aimed at conventionality of appearance and went far beyond that requirement.

[17]We are assisted in that finding by regarding the decision as a whole. We take into the fact that submissions focussing upon the hair length requirement were made to the Tribunal, and we have read the decision in the light of that. It would follow that, as Ms Parent accepted in her realistic submissions, the appeal could not then succeed. We should in deference to her argument say this however. In Smith v Safeway the basis for the conclusion of the Court of Appeal as we see it was not that there was any overriding principle that ponytails could lawfully be proscribed by employers. Rather the basis for the decision as appears in paragraph 29 of the judgment of Lord Justice Peter Gibson is that the Employment Tribunal was in that case entitled to reach the conclusion that it did. One ventures to think that had the Employment Tribunal in Smith v Safeway come to the opposite conclusion then the same reasoning would equally have upheld that which the Tribunal then said. Equally had this Tribunal in the present case concluded that the prohibition of ponytails went beyond the requirements of a dress code that sought to impose the conventional such that it became, in the words which Ms Parent used, 'extra conventional' then it would have been entitled so to find. It is, as we see it, particularly in this area, a question for a Tribunal to address.

[18]In looking at a dress standard it must ask first of all whether or not there is a contractual requirement for the standard. Secondly, it must ask, so far as discrimination on the grounds of sex is concerned, whether taken as a whole the dress code is discriminatory in that the treatment accorded to male employees is less favourable than the treatment accorded to female employees or the reverse. As part of that question it must inevitably examine the particular constituent elements of the dress code. This is not to say that men and women must be treated identically if there is to be no discrimination. It is for the Tribunal to decide the scope of its enquiry, but if the Tribunal is examining a dress code as a whole it will inevitably wish to view the component parts in order properly to assess the whole. This we think is no more than saying in different words that which was said at paragraph 9 and at paragraph 19 of the judgment of Lord Justice Phillips in Smith v Safeway which is binding upon us.

[19]It follows that we can see here no error of law in the decision which this Tribunal reached and accordingly this appeal must be dismissed. Can I thank both advocates for the quality of their submissions.